Preserve Your Constitutional Rights in a California DUI Investigation

Donald Gray Drewry

Written by

DUI / DWI Attorney - Oakland, CA

Contributor Level 12

Posted about 5 years ago. Applies to California, 2 helpful votes



Be Prepared When Stopped by the Police for DUI

Always have your valid driver's license, current registration and current insurance in one place and together. The moment you pull over, get them all out and ready for the officer. If you have to look for them or because you are nervous and drop them, the officer will say that you are intoxicated because they are trained that fumble is a sign of intoxication. Just because you are nervous, it shouldn't be held against you, so have them ready for the officer. When he or she asks for them, hand them to the officer.


Don't Answer Questions You Don't Need to That Can Be Used Against You

Very often, as soon as the officer approaches you, they ask for you license, registration and insurance. As above, have that ready and hand it to them, and don't say anything. At this point, the officer will probably ask if you know one of the following: Do you know why I stopped you? Your answer should be NO. Or, Do you know what the speed limit here is? Your answer: If you are implying I was speeding, I disagree, but I will sign the citation to appear, and I have nothing further to say. Never, Never, Never admit guilt. Don't lie. Just don't talk and admit anything.


Officer's Question about where you are coming from

The officer may next ask where you are coming from. That is none of the officer's business. It has nothing to do with speeding. If the officer thinks you impaired by alcohol, he or she is gathering this information for the toxicologist to convict you in court. Alcohol takes a certain amount of time to become absorbed in your blood system after you have drink the alcohol, and that time varies. The closer the time to drinking and driving the BETTER for you. The farther away from drinking and time of your driving the worse it is for you, so the officer wants to know where you are coming from. If where you are coming from is an hour away, then you could not have just had the drinks, and that will help convict you. So, don't answer that question. Just ask the officer why you were stopped. If speeding, ask what does where I am coming from have to do with speeding? The officer will never be able to explain that, so you never answer the question.


Officer's Question Have You Been Drinking

NEVER, NEVER, NEVER LIE. However, just answer the question and don't go beyond. For example: Sir, I smell alcohol, have you been drinking this evening? Answer: If you have not been drinking, then No, but if you have, then Yes. Officer, how much have you had to drink, Sir? Answer: I have had a few drinks. How many is a few drinks? Answer: A few. Officer: Well, is that 2,3, 5, how many? Answer: A few, why are you asking me this officer? I smell alcohol, and I think you may be intoxicated. If you think that I am impaired by the alcohol, I will take a "CHEMICAL TEST" to show you that I am innocent, but only the "State Required Chemical Test". Sir, please step out of the car. Do so, and do not lean on the door or car in going to the sidewalk or roadway or the officer will say you are impaired because you touched the car and hold yourself up or stumbled on a rock.


Use Your Cell Phone or Tape Recorder

If you have a tape recorder, and you should carry one in your console, or a cell phone that records, take it out , turn it on, and put it in your shirt pocket as soon as you are stopped. Remember, it is on, so only speak when talking to the officer. In your pocket, you can take it with you when you get out of the car when the officer asks you to get out of the car for field sobriety tests. This will later show how the officer talked to you, and that you were polite and did not slur you speech which is usually in every police report because that is a sign of impairment and it is always your word against the officers. This keeps a complete record of what was said, who was and was not polite, and whether or not you had slurred speech. Get in the habit of practicing with the cell phone if your cell phone has an audio recording feature. If not, get one, or a small tape recorder.


Don't Answer Pre-Field Sobriety Test Questions

Remember, when the officer asks you to get out of the car, don't lean on the door or stumble or hold on to or touch the car. The officer may say that you were so drunk that you had hold onto the car to hold yourself up. The officer will probably say you had unsteady gait, you sway while you walked or swayed while standing, a sign of impairment. Tip: Everyone sways a little 1 to 2 inches especially when they are nervous, cold or tired. Now at the side of the road, the officer will just starting asking you questions for no reason and without any explanation. Are you diabetic? If yes, say so. Did you take insulin? If yes, yes. Is there anything wrong with your car? Why, what makes you think there is? Are you under the care of a doctor or dentist? If you see a dentist regularly, then Yes for general car, and for the doctor list everything is treating you for. Is there anything physically wrong with you? List everything that you have ever had as an injury.


Field Sobriety Test Questions Continued

Anything physically wrong with you? List everything; for example, a few years ago, I broke my ankle and I have a plate in it. Very difficult for me with my balance. At some point, the officer well get beyond medical conditions and get to what seem like simple questions, such as, when did you sleep last? DON'T ANSWER THAT. Why? How long did you sleep? When did you eat last? What did you have to eat? (What difference should that make? Do mean if a person had a hamburger on hour before being stopped that they could do the heel to toe or one leg stand better than a person that had eaten a steak dinner two hours ago?) This information the officer is trying to get has to to with your alcohol absorption, so ask the Officer why these questions are being asked, and don't answer them. What time did you start drinking, when did you stop drinking, what did you have to drink, how many drinks did you have to drink? Nothing to do with FSTs, information to convict you.


Pre-FST Questions Continued

At this point, you should have realized that you are 99.9% on your way to jail; even if you only had two (2) drinks. But, remember, don't say two (2) just say a few or a couple, and never what. The officer will probably say if you pass the field sobriety tests (FSTs), I will let you go. The problem is that the FSTs are subjective and usually set up for you to fail, your word against the officer's. His or her opinion whether they administered the test correctly or not. So, don't do them. Just say, Officer, if you think I am drunk, I will not take any "Subjective Tests", but " I DEMAND, DEMAND TO TAKE THE INDEDPENDENT CHEMICAL TEST TO PROVE MY INNOCENCE". I have nothing further to say, just give me the required chemical test. In California, the officer is suppose to tell you don't have to take the Preliminary Alcohol Screening breath Test (PAS/PBT), but they usually don't, so if they put it front of you and tell you to blow, tell them only the chemical test.


Don't Take the PAS or PBT Beath Test

As I said, many officers tell you to blow into the roadside hand held breath test. In California, it is in the law, Vehicle Code Section 23612(i) that the officer SHALL inform you that you have the right to refuse this test; most don't but later say they did. Don't take it. Tell the officer you have nothing further to say, you are not taking any subjective tests, including the PAS or PBT test, and again I DEMAND TO TAKE THE STATE'S CHEMICAL TEST. If you are not sure about the breath test you are taking, then demand the blood test. Say nothing more, don't argue, always be police, and only take the one chemical test. However, there is a new law (2009) if you are on probation for a DUI, you must take the hand held PAS test in CA, and if you are .01% they can take your license for up to 3 years, so get a lawyer immediately and demand a blood test also. But if you are not on probation, don't take it. Just the chemical test.


The Arrest

Do not resist. After arrested, don't talk. While being booked, just give your general information: Name, correct address, date of birth, employment. Don't talk about the arrest or any of the things listed above. As soon as you are released, write down everything that you can remember from the day before time you went to sleep, when to when, breakfast what you ate and when, lunch time and when, dinner same, snacks, drinking, people you were with, receipts or phone calls to back it up. And don't forget your phone recorder. Call a superb DUI/DWI lawyer in your area, and have them contact the DMV for you hearing so you don't lose you driving privilege. Don't discuss your case with anyone other than a lawyer. Following this information will not guarantee you will win your case, but it increases your chances dramatically.

Additional Resources

See how soy sauce can effect a breath test by clicking on the CBS logo watch, or GERD, and more on the tips you have just received in being stopped by the police for DUI/DWI

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